Secrecy on the rise

Sun graphic by Kerry G. Johnson

Sun graphic by Kerry G. Johnson

Stephen KiehlSun Staff

LARRY SASICH WANTS to know why the Food and Drug Administration rejected parecoxib, a pain medication proposed for use after surgery. David Arkush wants to know about automobile safety defects reported by carmakers to the federal government, so that he can make sure the government is properly monitoring the auto industry.

Both work for Public Citizen, a nonprofit consumer-advocacy organization in Washington, and neither is getting what he wants.

More and more public records aren't so public anymore. The end of the Cold War and the rise of the Internet age created a culture of openness in which the government released millions of records. In 1997 alone, 204 million pages were declassified.

But advocates for open government say we appear to have entered a dark new era of secrecy. They note:

In President Bush's first term, the government made 51.2 million decisions to classify records and related documents, about as many as were made in both terms of the Clinton presidency.

At the same time, fewer documents are being declassified. The government declassified 43.1 million pages in 2003, down significantly from the Clinton years.

Some agencies are taking longer to process FOIA requests. Eight federal agencies reported median processing times of over one year, according to a report last year by the Government Accountability Office.

The departments of Commerce, Defense and Energy, among others, have removed thousands of documents from their Web sites because they are worried about national security risks.
Government officials say there's a good reason why so much more is being kept secret. The Sept. 11 attacks forced them to re-evaluate information that was once considered public, and balance the public's right to that information with national security interests.
"Unquestionably, agencies look at information now through a post-9/11 lens," said John Nowacki, senior counsel for the Justice Department.
The withholding of information touches many areas of American life. The American Society of Newspaper Editors is spearheading a drive to declare today Sunshine Sunday, the kickoff of Sunshine Week: Your Right to Know. Backed by a wide array of media groups, Sunshine Week is meant to focus on the issue of the public's right of access to government information.
Among those stung by increasing secrecy are advocacy groups like Public Citizen, auto safety groups, historians, environmentalists, firefighters and others. All are concerned that lack of access to important public information could keep them from doing their jobs.
Arkush, from Public Citizen, has filed suit to get information collected from the TREAD Act of 2000, passed in response to the explosions of Firestone tires that were linked to at least 100 deaths. Under the act, automakers must submit to the National Highway Traffic Safety Administration data on warranty claims, property-damage claims and other information on the safety of each vehicle.
But NHTSA has refused to make the information public, saying it includes confidential business information. Arkush says NHTSA can't be trusted to appropriately analyze the data.
"NHTSA has a long history of failing to monitor the auto industry carefully, and Congress intended the public to be able to hold NHTSA accountable," said Arkush, an attorney with Public Citizen. "We would do a similar analysis as they do, and if we spot any potential manufacturing defects, we would petition them to do something."
The Insurance Institute for Highway Safety, which uses public records on accident data in its road-safety reports, has found it harder to access certain kinds of information gathered by states. Susan Ferguson, the institute's senior vice president for research, said the group sometimes likes to interview drivers to get more details on accidents. But that's been tough.
"There are times you would like to talk to people and try to understand what went on, and many states aren't allowed to give you personal information," she said.
Presidential records are also harder to access these days because of an executive order issued by Bush shortly after taking office in January 2001. The order allows former presidents and vice presidents to veto the release of their records and appears to trump the Presidential Record Act, which states the National Archives must release policy-related records after 12 years. Bush's order led to a legal fight that delayed the release of 68,000 pages of Reagan-era records.
But the courts have not addressed the larger question of Bush's executive order, which is still in effect. Historians say it is illegal and are continuing to challenge it in court.
"This executive order in essence creates law rather than interprets law," said Bruce Craig, executive director of the National Coalition for History. "These types of records are the bread and butter of how history gets written."
Craig said he waited nine years to get a document released by the FBI that related to the Harry Dexter White espionage case from the late 1940s. He said a culture of secrecy has enveloped Washington similar to what happened during the anarchist threat of the early 1900s or the McCarthyism of the 1950s.
"Excessive government secrecy does the government more harm than good," Craig said. "It constitutes a breakdown of the trust that people have in the government. When you have openness, you have accountability."
Larry Sasich, a pharmacist and research analyst at Public Citizen, has been trying since last fall to get a copy of the FDA letter denying approval of parecoxib, an injectable Cox-2 inhibitor similar to Bextra and other pain medication that has recently drawn scrutiny as potentially dangerous. The FDA denial came in 2002, but the agency's reasons have not been made public.
The drug has been approved for use in 40 other countries. Sasich says the FDA denial letter could provide important information, not only to people using the drug in those countries but also to people in the United States who use Bextra, which has a similar composition.
"We would assume, from what we now know indirectly because of the Bextra reviews, that the letter would basically say parecoxib was not approved because of increased risk of heart attacks and strokes," Sasich said. Some of his information on the drug has come from Pfizer's filings with the Securities and Exchange Commission.
"The government feels more of a responsibility toward investors than it does toward patients," he said.
The Sierra Club is trying to find out who attended meetings of Vice President Dick Cheney's Energy Task Force in 2001 - a group that produced a report calling for more oil and gas drilling, as well as more nuclear power. The administration has refused, saying the Constitution protects such information.
After hearing the case last year, the Supreme Court sent it back to the U.S. Court of Appeals for the D.C. Circuit for further review. A decision is expected by August.
"It shouldn't be a state secret as to who is writing the plan that will supposedly guide our energy policy for the next decade," said David Bookbinder, senior counsel for the Sierra Club. "Democracy is founded on access to information and knowledge about what the government is doing."
Firefighters, meanwhile, are concerned about the recent buzz over the identification placards that are posted on trains and trucks carrying hazardous materials. Some have suggested the placards give too much information to potential terrorists. But firefighters say the placards are essential.
"There is a concern we're giving an invitation to terrorism," said Rich Duffy, who deals with health, safety and medical issues for the International Association of Firefighters. "But we have to deal with hazardous incidents every day, and not knowing it puts not only our members in serious danger, but it puts the public in serious danger."
It's a good example of how withholding information can do more harm than good, say advocates for greater public access.
They note that the 9/11 Commission Report cited one way in which the attacks might have been prevented. If Sept. 11 mastermind Khalid Sheikh Mohammed had known of the arrest of Zacarias Moussaoui, he would have called off the attacks, according to an intelligence report on the interrogation of a key al-Qaida member.
The consequences of keeping the arrest secret were devastating, say advocates for access.
"Information hoarding killed people on 9/11," said Thomas Blanton, director of the National Security Archive at George Washington University. "So publicity is our defense. Openness is our security."
Even some in the government say too much is being classified. J. William Leonard, director of the Information Security Oversight Office, a part of the U.S. National Archives, said the default position for many bureaucrats is to stamp something as classified without asking if it's really necessary.
But, he said, "You can be in a position where national interests and national security can be harmed even more by not releasing the information."